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How  To  Try  A  Land 
Damage  Case 


Modern  American  Law  Lecture 


Blackstone  Institute,  Chicago 


HOW  TO  TRY  A 
LAND  DAMAGE  CASE 


BY 

PHILIP  NICHOLS,  A.B.,  LL.B. 

In 


One  of  a  Series  of  Lectures  Especially  Prepared 
for  the  Blackstone  Institute 


BLACKSTONE    IN&TITUTE 
CHICAGO 

Copyright,  1916,  by  Blackstone  Institute 


PHILIP  NICHOLS 


PHILIP  NICHOLS 

The  author  of  this  Lecture  has  been  a  member 
of  the  Massachusetts  Bar  for  nearly  twenty  years. 
In  this  long  period  of  practice,  principally  devoted 
to  Constitutional  Law  matters,  he  has  acquired  a 
fund  of  practical  knowledge  on  some  of  the  most 
intricate  problems  of  the  law,  which  will  appeal 
with  unusual  force  to  those  interested  in  Piinincnt 
Domain,  Taxation  and  Land  Damage  cases. 

Mr.  Nichols  was  born  in  Boston,  July  25,  1875. 
He  received  his  preliminary  education  in  private 
schools  in  Boston,  and  later  entered  Harvard  Col- 
lege, from  which  he  received  the  degree  of  Bachelor 
of  Arts  in  1895.  He  then  entered  Harvard  Law 
School,  from  which  he  received  the  degree  of 
Bachelor  of  Laws  in  1898,  and  was  admitted  to  the 
Massachusetts  Bar  the  same  year. 

From  1898  until  1909  he  was  in  the  Law  Depart- 
ment of  the  City  of  Boston,  first  as  AssisUmt  City 
Solicitor,  and  later  as  Assistant  Corporation  Coun- 
sel. During  this  period  he  handled  many  impor- 
tant cases  involving  Constitutional  points,  which 
has  made  him  an  acknowledged  expert  in  that 
branch  of  law. 

In  1909  Mr.  Nichols  entered  private  practice, 
and  in  1910  entered  into  a  partnership  with  S.  H. 
Hudson,  Es(i.,  of  the  Boston  Bar,  and  has  sinee 
continued  with  this  firm,  which  is  known  as 
"Hudson  and  Nichols." 

Mr.  Nichols  is  the  author  of  "The  Law  of  Land 
Damages  in  MassacluLSetts,"  which  was  publislied 
in  1907;  "The  Power  of  Eminent  Domain,"  pub- 
lished in  1909;  "Taxation  in  IMassaeliusetts,"  pub- 
lished in  li)i;?;  and  tlie  articles  on  "Taxation" 
and  "Eminent  Domain"  in  IModern  American 
Law. 

The  reader  will  find  a  great  deal  of  valuable 
practical  information  on  the  following  pages. 


HOW  TO  TRY  A 
LAND  DAMAGE  CASE 

By 
Philip  Nichols,  A.B.,  LL.B. 

The  term  '4and  damage  case"  is  generally  under- 
stood as  signifying  a  case  involving  the  ascertainment 
of  compensation,  either  for  the  taking  of  land  for 
public  use  by  eminent  domain,  or  for  permanent 
injury  to  land  by  the  construction  of  a  public  im- 
provement. It  is  thus  given  a  rather  different  mean- 
ing than  its  literal  significance,  in  that  it  includes 
the  appraisal  of  value  of  land  when  the  whole  of  it 
is  taken  and  no  question  of  damage  to  remaining 
land  is  involved,  and  that  it  excludes  cases  involving 
damage  to  land  by  the  mere  trespass  of  a  private 
party.  Land  damage  cases  belong  to  a  class  by  them- 
selves, whether  any  land  is  taken  or  not,  and  they 
presuppose  a  permanent  condition  of  things  created 
by  sanction  of  law  for  the  public  good,  and  have  noth- 
ing in  common  with  a  suit  for  a  trespass  to  land 
which  will  not  be  repeated,  or  for  a  nuisance  which 
the  law  will  cause  to  be  abated. 

The  procedure  in  land  damage  cases  varies  widely 
in  the  different  States,  depending  as  it  docs  entirely 
upon  statutory  law,  and  there  are  two  entirely  dif- 

5 


6  MODERN  AMERICAN  LAW  LECTURE 

ferent  methods  of  taking  property  by  eminent  do- 
main, each  of  which  involves  an  entirely  different 
treatment  of  the  subject  from  the  other.  In  many  of 
the  States,  when  a  new  highway  or  street  is  to  be  laid 
out,  a  board  of  county  commissioners,  or  street  com- 
missioners, or  aldermen,  or  selectmen  or  a  similar 
local  body,  by  vote  or  resolution  establishes  the  de- 
sired highway  and  makes  a  taking  of  the  land  re- 
quired, and  upon  the  entry  of  this  vote  or  resolution 
upon  the  official  records  of  the  board  which  passed 
it,  or  of  the  registry  of  deeds  in  the  county  in  which 
the  land  is  situated,  as  the  local  statutes  may  require, 
the  taking  is  complete,  and  the  tile  to  the  land  taken, 
or  to  a  right  of  way  over  such  land,  passes  from  the 
owner  to  the  county,  city  or  town.  The  board  which 
makes  the  taking  generally  has  also  the  duty  of 
awarding  compensation  to  the  owners  of  the  land, 
and  such  an  award  is  made  at  the  same  time  that  the 
land  is  taken.  Notice  of  the  taking,  by  publication 
or  service,  is  then  given  to  the  owners  of  the  land, 
and  it  devolves  upon  them,  if  dissatisfied  with  the 
award,  to  prosecute  their  claim  for  additional  com- 
pensation. This  is  done  by  bringing  a  special  pro- 
ceeding provided  by  statute,  either  in  the  nature  of 
an  appeal  from  the  original  award  or  an  original 
suit,  in  wdiich  the  owner  of  the  land  appears  in  the 
capacity  of  petitioner  or  plaintiff,  and  the  county, 
city  or  town  is  brought  into  court  as  a  respondent  or 
defendant.  In  some,  though  not  all,  of  the  States 
which  employ  this  method  of  taking  land  for  high- 
ways and  other  governmental  and  municipal  pur- 
poses, a  similar  provision  is  made  for  takings  by 


HOW  TO  TRY  A  LAND  DAMAGE  CASE      7 

railroad  or  other  public  service  corporations,  although 
in  such  cases  the  approval  by  the  public  authorities 
of  the  route  selected  by  the  company  is  generally 
required. 

In  the  majority  of  the  States,  when  a  corporation, 
and  in  many  States,  a  county,  city  or  town,  desires  to 
take  land  by  eminent  domain,  it  files  a  petition  in 
court  asking  to  be  allowed  to  condemn  certain  prop- 
erty described  in  the  petition,  and  the  owners  of  the 
property  are  made  respondents  or  defendants.  If 
the  court  finds  that  the  party  seeking  to  condemn  the 
land  has  the  requisite  authority  from  the  legislature, 
and  that  the  proceedings  are  regular,  it  enters  an 
order  accordingly,  and  the  damages  are  then  duly 
assessed  by  the  jury  or  other  tribunal  provided  by 
law. 

It  has  happened  with  surprising  frequency,  in 
many  of  the  States,  that  corporations  have  under- 
taken public  improvements  inflicting  serious  damage 
upon  private  land,  or  have  even  actually  taken  land, 
without  adequate  authority  from  the  legislature.  A 
corporation  attempting  to  exercise  eminent  domain 
without  authority  is  a  mere  trespasser,  and  the 
owTiers  of  lands  affected  are  entitled  to  treat  it  as 
such.  In  such  cases,  however,  as  a  practical  matter, 
it  often  would  result  in  such  public  discomfort  and 
economic  loss  if  the  offending  structure  were  torn 
down,  and  such  inconvenience  to  all  parties  if  the 
owner,  in  order  to  recover  compensation,  was  obliged 
to  bring  successive  actions  of  trespass  for  damages 
suffered  up  to  the  date  of  the  writ  in  each  ease,  that, 
if  the  structure  is  one  wliich  the  legislature  has  or 


8  MODERN  AMERICAN  LAW  LECTURE 

might  have  authorized,  the  courts  are  inclined  to  allow 
permanent  damages  to  be  assessed  in  one  action,  just 
as  in  a  statutory  eminent  domain  proceeding,  and  to 
treat  the  pa}inent  of  the  damages  as  equivalent  to 
an  authority  to  continue  to  maintain  the  structure  as 
long  as  the  pu])lic  needs  require  it.  In  such  a  case,  of 
course  the  owner  of  the  land  is  the  plaintiff  and  the 
corporation  is  the  defendant ;  and  the  same  damages 
are  assessed  as  in  a  true  eminent  domain  case. 

In  some  States  trial  by  jury  in  land  damage  cases 
is  required  by  the  constitution,  in  others  there  is  no 
such  requirement.  In  every  State,  however,  the 
owner  is  entitled  to  be  heard  upon  the  amount  of  his 
compensation  and  damages  by  an  impartial  tribunal, 
and  to  an  opportunity  to  offer  evidence  upon  this 
issue,  to  have  the  evidence  against  him  submitted  in 
open  court,  with  the  right  to  subject  it  to  cross-exam- 
ination, and  to  present  an  argument  upon  the  law  and 
the  evidence,  and  to  take  all  questions  of  law  arising 
at  the  hearing  to  the  highest  appellate  tribunal  pro- 
vided by  law  for  questions  of  similar  importance. 
When  the  case  is  ripe  for  such  a  hearing,  all  questions 
involving  the  validity  of  the  taking  have  been  passed 
upon,  if  the  proceedings  were  instituted  by  the  con- 
demning party,  or  waived  if  the  petition  for  com- 
pensation was  brought  by  the  owner,  and  the  only 
matter  before  the  court  is  to  determine  the  compensa- 
tion or  damages  to  be  awarded  the  land-owner,  for 
the  taking  of  his  land,  or  for  injury  to  land  not  taken. 
It  is  the  trial  of  this  issue  that  is,  specifically,  what 
is  conmionly  called  the  trial  of  a  **land  damage  case.'' 

Before  undertaking  the  preparation  of  a  land  dam- 


HOW  TO  TKY  A  LAND  DMIAGE  CASE  9 

age  case,  the  attorney  and  his  client  should  seriously 
consider  whether  the  game  is  worth  the  candle.  Land 
damage  cases  are  expensive  to  prepare  and  try  prop- 
erly, and  if  the  land  taken  is  not  really  valuable,  or 
the  damage  is  not  severe,  or  the  margin  between  the 
award  or  offer  made  by  the  condemning  party  and 
what  the  owner  claims  is  not  great,  it  is  the  wiser 
course,  and  more  to  his  client's  advantage,  for  the 
attorney  to  make  the  best  settlement  possible  rather 
than  to  allow  his  client  to  incur  the  expense  of  trial, 
with  the  result,  even  if  successful,  of  receiving  no 
greater  net  compensation  than  if  he  had  accepted 
what  was  offered  him  in  the  first  place,  and  having 
the  annoyance  and  mental  strain  of  a  trial  for  noth- 
ing, not  to  mention  the  risk  of  failing  to  better  the 
award.  The  corporation  which  made  the  taking  can 
often  afford  to  try  a  land  damage  case  when  very  lit- 
tle is  involved,  for  the  moral  effect  it  will  have  upon 
the  owners  of  other  lands ;  but  an  owner  should  be- 
ware of  being  the  representative  of  his  neighborhood 
in  a  test  case.  If  the  other  owners  are  to  get  the 
benefit  of  a  successful  outcome  in  the  shape  of  favor- 
able settlements  they  should  share  the  expense  of  the 
trial.  The  expense  of  trying  a  land  damage  case,  in 
addition  to  counsel  fees,  includes  the  cost  of  survey- 
ing and  making  plans,  of  taking  photographs,  of  the 
view  of  the  jury,  and  principally,  of  the  fees  of  expert 
witnesses.  Real  estate  experts  usually  charge  fifty 
dollars  a  day  for  services  in  court,  with  often  some- 
thing additional  for  their  report.  The  minimum  ex- 
pense of  a  land  damage  case,  outside  of  counsel  fees, 
is  $150,  and  rarely  is  less  than  $250. 


10  MODERN  AMERICAN  LAW  LECTURE 

If  a  fair  settlement  cannot  be  reached,  and  it  is 
decided  to  try  the  case,  it  should  be  given  a  thorough 
preparation.  The  attorney,  if  not  already  familiar 
^vith  the  locality,  should  first  of  all  examine  the  prop- 
erty and  its  surroundings  with  great  care,  so  as  to  be 
able  to  appreciate  its  possibilities  and  to  understand 
the  testunony  in  regard  to  it.  He  should  employ  a 
competent  surveyor  to  make  a  plan  showing  clearly 
the  original  parcel  and  the  land  taken.  He  should 
then  undertake  the  most  important  step,  the  engag- 
ing of  competent  expert  witnesses. 

The  first  question,  which  arises  in  all  land  damage 
cases,  is  the  value  of  the  land  before  the  taking. 
Value  is  a  matter  of  opinion,  and  may  be  shown  by 
evidence  of  the  opinion  of  experts  and  of  other  wit- 
nesses who  have  special  knowledge  of  the  subject. 
The  customary  experts  are  dealers  in  real  estate. 
Dealing  in  real  estate  is  an  honorable  occupation,  and 
the  number  of  real  estate  men  who  deservedly  enjoy 
the  confidence  of  the  community  is  doubtless  very 
large;  but  unfortunately  the  occupation  of  dealing 
in  real  estate  is  too  frequently  the  last  refuge  of  a 
scoundrel,  and  there  are  always  plenty  of  worthless 
fellows  who  call  themselves  real  estate  men  and  who 
insinuatingly  proffer  their  services  to  litigants  in 
land  damage  cases.  Such  men  will  testify  gladly  for 
whichever  party  is  willing  to  pay  them  the  usual  fee, 
and  the  land  is  ruined  or  doubled  in  value  in  their 
estimation,  as  best  suits  the  interests  of  their  em- 
ployer. Such  men  should  be  avoided  as  the  plague. 
They  are  sure  to  be  known  by  reputation  to  someone 
on  the  jury,  and  the  presence  of  one  such  man  among 


HOW  TO  TRY  A  LAND  DAMAGE  CASE  11 

the  forces  of  one  of  the  litigants  may  breed  a  wholly 
unmerited  distrust  of  the  justice  of  liis  case  in  the 
minds  of  the  jury.  The  principal  witness  for  the 
owner  should  be  a  real  estate  dealer  of  standing  in 
the  community,  who  not  only  has  a  substantial  knowl- 
edge of  the  subject  of  real  estate  values  as  a  whole, 
but  who  has  dealt  in  lands  in  the  neighborhood  of  the 
land  in  controversy  at  or  about  the  time  of  the  taking. 
Such  a  dealer  should  be  retained  by  the  attorney  and 
asked  to  prepare  a  written  report,  estimating  the 
value  of  the  original  tract  and  the  value  of  the  land 
taken,  if  any,  and  the  damage  to  the  remaining  land, 
treated  from  the  owner's  point  of  view.  If  the  re- 
port is  in  accord  with  the  owner's  contentions,  he  is 
one  step  further  in  the  preparation  of  his  case.  If 
the  report  of  the  expert  is  unfavorable,  and  he  can- 
not be  convinced  of  the  merit  of  the  owner's  claun,, 
there  is  nothing  to  do  but  to  pay  his  bill  and  try  some- 
one else.  If  another  competent  expert,  who  is  not. 
in  any  way  tied  up  with  the  corporation  taking  the 
land,  is  also  of  opinion  that  the  award  is  sufficient, 
the  owner  and  his  attorney  should  again  seriously; 
consider  the  advisability  of  settlement. 

Assuming,  however,  that  the  first  expert's  report 
is  encouraging,  the  attorney  should  proceed  in  a  simi- 
lar way  to  secure  as  many  more  experts  as  the  im- 
portance of  the  case  wdll  warrant.  Few  cases  are  of 
sufficient  importance  to  be  tried  at  all,  if  they  must 
be  tried  with  less  than  two  experts.  If  dealers  in 
real  estate  are  not  available,  or  even  if  they  are,  to 
supplement  their  testimony,  it  is  Avell  to  secure 
opinion  evidence  from  other  sources.    Local  officials, 


12  MODERN  AMERICAN  LAW  LECTURE 

such  as  assessors  of  taxes,  often  have  a  good  knowl- 
edge of  land  values  in  the  districts  in  which  their 
duties  require  them  to  officiate,  and  are  available  as 
v^itnesses  to  value  in  cases  in  which  the  city  or  town 
by  which  they  are  employed  is  not  a  party ;  and  even 
in  cases  of  the  latter  character  former  officials  can 
sometimes  be  used.  Shrewd  men  of  mature  age  who 
have  dw^elt  in  the  vicinity  of  the  land  for  many  years 
and  are  familiar  with  its  possibilities  and  with  the 
prices  that  have  been  paid  for  land  in  the  neighbor- 
hood are  competent  witnesses,  and  often  very  effect- 
ive with  the  jury,  some  members  of  which  may  have 
xin  innate  distrust  of  real  estate  men  and  politicians. 

The  attorney  should  go  over  the  case  thorouglily 
wdth  all  his  witnesses  and  cross-examine  them  him- 
self, so  that  all  possible  weaknesses  in  their  testimony 
wdll  be  brought  out  and  guarded  against,  and  he 
should  not  allow  them  to  ex^Dress  any  opinions  that 
they  cannot  back  up  with  facts  or  sound  and  plausible 
reasoning. 

He  must  familiarize  himself  with  all  sales  of  simi- 
lar proi^erty  in  the  neighborhood,  at  or  about  the 
time  of  the  taking.  The  price  paid  at  such  sales  is 
admissible  in  most  jurisdictions  as  direct  evidence 
of  value,  and  can  be  used  on  cross-examination  every- 
where. The  sales,  to  be  admissible  in  evidence,  must 
be  voluntary ;  evidence  of  the  price  paid  in  condemna- 
tion proceedings  or  at  foreclosure  sales  is  not  ad- 
missible. There  is  no  more  conclusive  evidence  of 
value  than  the  price  paid  for  really  similar  land  at 
a  bona  fide  and  voluntary  sale,  especially  if  it  can 
be  shown  that  the  prices  in  several  sales  were  con- 


HOW  TO  TRY  A  LAND  DAMAGE  CASE     13 

sistent  with  each  other  and  established  a  recognized 
market  price  of  a  definite  sum  per  acre  or  square  foot. 
Such  evidence  is  worth  more  than  the  unsubstan- 
tiated opinions  of  a  dozen  experts.  If  the  conclusion 
to  be  dra\\Ti  from  the  evidence  of  sales  is  unfavor- 
able, the  attorney  must  be  prepared  to  distinguish  the 
cases  or  explain  away  the  conclusion,  or  he  may  be 
sure  that  his  opponent  will  introduce  such  evidence 
with  telling  results. 

Another  class  of  evidence  to  prepare,  both  as  a 
separate  subject  matter  and  as  incident  to  the  testi- 
mony of  the  experts,  is  evidence  relating  to  the  possi- 
ble uses  of  the  land.  The  test  of  value  in  land  dam- 
age cases  is  not  value  to  the  o^^Tler,  or  value  for  the 
use  for  which  the  land  is  actually  put,  but  the  fair 
market  value  of  the  land,  that  is,  the  price  which 
would  be  agreed  upon  at  a  voluntary  sale  between 
an  owner  willing  to  sell  and  a  purchaser  willing  to 
buy,  taking  into  consideration  all  uses  for  which  the 
land  is  adaptable  and  might  be  used  which  are  so  rea- 
sonably probable  as  to  have  an  effect  upon  present 
value.  Therefore  it  is  proper,  when  residential  prop- 
erty is  taken  by  eminent  domain,  if  such  property  has 
a  greater  value  for  business  purposes,  to  put  in  evi- 
dence facts  tending  to  show  such  value,  as  for  exam- 
ple the  nearness  of  the  premises  to  the  business  cen- 
tre of  the  town,  the  amount  of  traffic  on  the  street 
upon  which  it  fronts,  the  use  to  which  neighboring 
property  is  put,  and  such  special  circumstances  as, 
for  example,  nearness  to  a  post-office,  or  to  a  railroad 
station,  or  to  a  factory  in  which  mam^  hands  are  em- 
ployed.   If  it  is  contended  that  the  property  is  valu- 


14  MODERN  AMERICAN  LAW  LECTURE 

able  for  manufacturing  purposes,  the  shipping  facil- 
ities, and  the  possibility  of  connecting  the  premises 
with  a  railroad  by  means  of  a  spur  track,  may  be 
shown.    In  the  case  of  the  taking  of  a  large  tract  of 
land  in  the  suburbs  of  a  growing  city,  whether  the 
land  is  vacant  or  is  used  for  farming  purposes,  if  it 
has  a  value  for  residential  purposes,  the  attorney 
should  have  a  plan  prepared  showing  how  the  land 
can  best  be  developed  for  such  purposes,  with  pro- 
jected streets  and  house  lots  marked  out.     Such  a 
plan,  with  explanatory  evidence,  is  admissible  as 
showing  one  of  the  possible  uses  of  the  land,  and  con- 
sequently its  market  value  as  it  stands ;  the  price  at 
which  the  separate  lots  will  sell  is  too  remote,  as  it 
may  be  many  years  before  all  will  be  sold ;  and  attor- 
neys should  be  very  careful  not  to  go  too  far  with  this 
sort  of  evidence.    If  there  is  no  reasonable  probabil- 
ity that  there  will  be  any  demand  for  house  lots  in 
the  neighborhood  for  many  years,  to  offer  a  plan 
showing  a  division  into  streets  and  house  lots  will 
merely  bring  ridicule  upon  the  owner,  and  raise  a 
suspicion  in  the  minds  of  the  jury  that  his  whole 
claim  is  a  fraud. 

It  is  sometimes  proper  to  consider,  among  the  pos- 
sible uses  of  land,  the  public  use  for  which  it  is  actu- 
ally taken.  Land  may  be  so  situated  with  relation 
to  a  large  city  or  town  and  its  most  available  water 
supply  that  such  land  will  probably  or  inevitably  be 
required,  in  the  course  of  the  natural  growth  of  popu- 
lation, in  connection  with  a  system  of  water-works. 
If  this  probability  enters  into  the  present  market 
value  of  the  land,  it  may  be  taken  into  consideration, 


HOW  TO  TRY  A  LAND  DAMAGE  CASE  15 

but  it  should  be  remembered  that  when  the  use  for 
which  the  land  is  likely  to  be  needed  is  one  for  which 
property  may  be  taken  by  eminent  domain,  the  natu- 
ral monopoly  which  its  situation  gives  it  does  not 
enhance  its  market  value  as  much  as  would  its  char- 
acter as  an  especially  desirable  site  for  private  busi- 
ness purposes,  as  in  the  latter  case  the  owner  cannot 
be  compelled  to  part  with  it  except  at  his  own  figures. 

An  attorney  should  also  look  into  the  question 
whether  the  value  of  the  land  has  not  been  increased 
by  the  expected  construction  of  the  improvement  for 
which  it  was  taken.  Of  course,  if  it  was  known  from 
the  first  what  land  was  to  be  taken,  the  land  taken 
derived  no  increase  in  value  from  the  expectation  of 
a  public  improvement  in  its  neighborhood,  proximity 
to  which  it  could  never  enjoy.  The  hope  of  a  success- 
ful lawsuit  is  not  a  valuable  use  of  land.  It  often 
hai3pens,  however,  that,  long  before  the  construction 
of  a  particular  public  improvement  is  authorized,  and 
its  site  definitely  located,  it  is  discussed  and  pro- 
jected, and  values  in  the  whole  of  the  neighborhood 
in  which  it  is  planned  to  construct  it  rise  in  anticipa- 
tion. In  such  a  case,  when  the  taking  is  finally  made, 
the  o^^^ler  is  entitled  to  recover  the  market  value  at 
the  time  of  the  taking,  and  to  enjoy  the  benefit  of  the 
increase  in  values  due  to  the  expectation  of  the  com- 
ing of  the  improvement. 

In  some  land  damage  cases  the  land  involved  is  of 
such  a  character,  or  is  put  to  such  a  use,  that  it  has 
no  value  for  sale  in  the  ordinary  manner,  or  its  value 
cannot  be  proved  by  persons  familiar  with  the  mar- 
ket value  of  adjacent  property,  and  yet  it  fulfils  the 


16  MODERN  AMERICAN  LAW  LECTURE 

purposes  for  which  it  is  held,  and  has  a  real  value  to 
the  owner.  In  this  class  would  fall  such  properties 
as  a  church  or  a  cemetery,  or  even  a  site  occupied  by 
a  mill  which  w^as  the  only  one  of  its  kind  in  the  part 
of  the  State  in  which  it  was  located.  In  such  cases, 
as  real  estate  experts  of  the  usual  character  would  be 
unable  to  testify  with  any  degree  of  assurance  as  to 
market  value,  value  may  be  proved  by  witnesses 
familiar  with  the  property  itself  and  the  use  to  which 
it  is  applied,  who  may  testify  as  to  its  value  for 
such  use. 

Ordinarily,  when  land  is  taken  by  eminent  domain, 
although  the  public  acquires  only  an  easement,  and 
the  title  to  the  land  subject  to  the  easement  remains 
in  the  former  owner,  as  a  practical  matter  in  award- 
ing compensation  no  distinction  is  made  from  a  tak- 
ing of  the  fee,  and  the  owTier  is  awarded  the  full  mar- 
ket value  of  the  land  subjected  to  the  easement.  In 
some  cases,  however,  the  easement  is  of  such  a  char- 
acter that  the  enjoj^ment  of  the  fee  has  a  substantial 
value,  as  when  the  easement  of  stringing  telegraph 
wires  over  private  land  is  taken,  or  of  laying  pipes 
beneath  the  surface.  In  such  cases  a  real  estate  ex- 
pert who  could  merely  testify  as  to  the  value  per 
square  foot  of  the  strip  of  land  included  in  the  tak- 
ing would  be  incompetent,  and  it  would  be  necessary 
to  engage  witnesses  who  would  be  able  to  qualify 
from  their  o\^Tl  experience  as  competent  to  express 
an  opinion  upon  the  amount  of  damage  that  the  im- 
position of  the  easement  would  inflict  upon  the  land 
by  making  it  less  available  for  use. 

If  there  are  buildings  upon  land  taken  by  eminent 


HOW  TO  TRY  A  LAND  DAMAGE  CASE  17 

domain  still  another  class  of  evidence  is  required. 
Buildings  are  not  to  be  valued  apart  from  the  land, 
but  are  considered  only  so  far  as  they  add  to  the  mar- 
ket value  of  the  land.  A  building  inappropriate  to 
its  surroundings  may  actually  detract,  to  the  extent 
of  the  cost  of  tearing  it  dowTi,  from  the  value  of  the 
land.  To  lay  a  foundation  for  testimony  upon  the 
value  of  buildings  the  evidence  of  a  real  estate  expert 
that  the  buildings  are  suitable  and  appropriate  for 
the  uses  to  which  the  property  is  best  adapted  is  essen- 
tial. If  this  can  be  sIiowtq,  then  it  is  a  fair  conclusion 
that  the  buildings  increase  the  market  value  of  the 
land  to  the  extent  of  their  own  structural  value. 
Structural  value  should  be  shown  by  carpenters  and 
builders  who  have  given  the  building  a  thorough  ex- 
amination and  are  able  to  testify  as  to  the  cost  of 
reproduction.  Such  cost,  with  a  reasonable  allowance 
for  depreciation,  represents  the  structural  value  in 
ordinary  cases.  It  sometimes  happens,  however,  in 
large  cities  that  an  old  building  is  taken  for  widening 
or  extending  a  street  or  for  other  public  uses,  which 
is  well  tenanted  and  returns  a  large  income  to  its 
owner,  but  which  could  not  be  lawfully  reproduced 
on  account  of  the  enactment  of  more  stringent  build- 
ing laws  since  it  was  erected.  In  such  a  case  an  artifi- 
cial value  is  created,  and  the  market  value  of  the  land 
and  building  may  be  greatly  in  excess  of  the  market 
value  of  the  land  alone  plus  the  structural  value  of 
the  building.  If  the  premises  are  taken  by  eminent 
domain  the  owner  is  entitled  to  be  paid  the  full  mar- 
ket value,  even  though  part  of  such  value  is  based 
upon  the  exercise  of  the  police  power  of  the  State. 


18  jMODERN  AMERICAN  LAW  LECTURE 

If  the  premises  taken  are  rented,  the  gross  amount 
of  rents  received  is  admissible  on  the  question  of 
Talue.  The  assessed  value,  or  the  amount  for  which 
the  premises  are  taxed,  is  not  admissible  in  evidence, 
even  in  States  in  which  real  estate  is  assessed  its  full 
market  value,  except  in  States  which  by  statute  allow 
the  admission  of  such  evidence.  Some  attorneys, 
however,  manage  to  get  the  assessment  before  the 
jury  by  calling  one  of  the  assessors  as  an  expert.  If 
he  states  his  opinion  of  the  value  of  the  property  to 
the  jury  and  is  not  cross-examined  upon  the  incon- 
sistency of  his  testimony  with  his  officials  acts,  it  is 
a  fair  inference  that  the  assessment  was  substantially 
the  same  as  his  opinion  of  the  value. 

After  sufficient  evidence  of  the  value  of  the  orig- 
inal tract  has  been  obtained,  the  next  question  upon 
which  to  prepare  for  trial  is,  how  much  has  it  been 
damaged  by  the  taking.  Of  course  if  the  entire  tract 
has  been  taken,  the  measure  of  damages  is  the  value 
of  the  land.  If  part  of  the  tract  has  been  taken,  it 
is  the  usual  practice  to  figure  the  market  value  of  the 
land  taken  and  add  to  it  the  damage,  if  any,  to  the 
remaining  land.  Upon  these  issues  the  same  wit- 
nesses whose  opinions  were  sought  as  to  the  value  of 
the  original  tract  may  be  used.  It  often  happens, 
however,  that  the  damage  to  the  remaining  land  can 
be  entirely  or  partially  corrected  by  adapting  the 
land  to  its  new  surroundings,  as  by  fiUing  or  cutting 
down  the  land  to  correspond  with  the  new  grade 
of  a  street,  or  by  erecting  a  retaining  wall  or  putting 
a  new  front  or  a  new  entrance  upon  a  building. 
If  the  cost  of  such  work  will  be  less  than  the  depre- 


HOW  TO  TRY  A  LAND  DAMAGE  CASE  19 

elation  in  the  value  of  the  land  if  it  is  left  in  its 
former  condition,  such  cost  represents  the  proper 
measure  of  damages ;  but  to  lay  a  foundation  for  evi- 
dence of  such  cost  it  is  necessary  to  offer  testimony 
of  experts  upon  valuation,  to  show  the  amount  of 
depreciation  if  no  work  is  done,  unless  it  is  apparent 
on  the  face  of  things  that  the  cost  of  repairs  will  be 
less  than  the  damage  if  the  property  is  allowed  to 
stand  as  it  is.  The  foundation  having  been  laid  by 
real  estate  experts,  the  cost  of  the  alterations  can 
be  shown  by  civil  engineers,  architects,  contractors, 
builders,  masons  or  whoever  may  be  best  qualified  to 
testify  as  to  the  cost  of  the  particular  repairs  re- 
quired under  the  circumstances. 

If  possession  is  to  be  taken  of  the  property  before 
the  trial  and  its  physical  appearance  altered  by  the 
construction  of  public  works  upon  it,  as  is  permitted 
in  many  of  the  states,  the  attorney  should  have 
'photographs  taken  by  a  competent  professional 
photographer  showing  the  land  and  buildings  as  they 
were  before  the  taking. 

The  preparation  having  been  completed,  the  attor- 
ney is  now  ready  to  proceed  with  the  trial  of  the  case. 
In  jurisdictions  in  which  a  jury  is  required,  the 
case  takes  its  place  upon  the  court  calendar  and  is 
tried  by  a  judge  and  jury  in  the  same  manner  as 
other  lawsuits.  When  a  city  or  town  is  a  party,  tax- 
payers in  such  city  or  town  may  be  challenged  for 
cause.  When  the  trial  is  before  commissioners,  it 
should  proceed  with  all  the  formality  of  a  lawsuit, 
and  no  evidence  should  be  presented  to  the  commis- 
sioners except  under  oath  and  in  open  court.    The 


20  MODERN  AMERICAN  LAW  LECTURE 

rules  of  law  relating  to  admissibility  of  evidence  in 
proceedings  in  court  should  in  substance  be  fol- 
lowed. 

After  the  jury  has  been  impanelled  or  other  trib- 
unal is  ready  for  the  hearing,  a  view  of  the  premises 
should  be  taken.  A  view  is  required  by  law  in  many 
states  in  land  damage  cases  if  either  party  requests 
it,  and  should  be  had  in  the  interest  of  justice  in 
every  instance,  as  no  tribunal  can  intelligently  hear 
a  land  damage  case  without  having  seen  the  premises. 
The  owner  naturally  desires  to  have  his  property 
shoAv  to  best  advantage,  and  sometimes  a  little 
manoeuvering  occurs,  especially  when  the  property 
involved  is  in  the  suburbs,  the  owner  endeavoring 
to  have  a  trial  in  the  late  spring  when  the  surround- 
ings are  attractive,  while  if  the  parties  making  the 
taking  succeed  in  having  the  trial  take  place  in 
winter,  and  oblige  the  jury  to  wade  through  slush 
and  snow  to  view  the  premises,  they  feel  that  they 
have  scored  a  distinct  advantage.  The  function  of 
a  view  is  not  the  same  in  all  the  states.  In  some 
states  a  view  is  had  merely  to  enable  the  jury  to 
understand  and  apply  the  evidence,  and  the  verdict 
is  based  on  the  evidence  only,  while  in  others  the 
jury  is  expected  to  use  its  own  knowledge  of  values 
in  connection  with  what  it  sees  on  the  view,  and  to 
return  a  verdict  based  upon  both  the  view  and  the 
evidence.  If  a  view  is  taken  of  land  alleged  to  be 
damaged  by  the  operation  of  a  public  improvement, 
such  as  an  elevated  railroad,  the  attorney  for  the 
owner  should  find  out  the  usual  running  time  of  the 
trains  between  two  points  on  either  side  of  the  land 


HOW  TO  TRY  A  LAND  DAMAGE  CASE  21 

in  controversy  and  make  sure  that  the  trains  are 
being  operated  in  their  customary  manner  while  the 
jury  is  taking  its  view;  otherwise  the  jury  may  be 
misled  as  to  the  amount  of  damage. 

After  the  jury  has  returned  from  the  view,  it  is 
not  unusual  to  have  hung  up  in  front  of  the  jury 
a  large  plan  which  both  parties  agree  is  correct, 
showing  the  original  property  and  the  limits  of  the 
taking,  colored  appropriately,  so  that  the  witnesses 
can  explain  their  testimony  by  reference  to  the  plan. 
The  award  of  the  commissioners  is  not  admitted  in 
evidence  or  in  any  way  brought  to  the  attention  of 
the  jurors,  and  the  burden  is  upon  the  owner  to 
show  the  value  of  his  property  and  the  extent  of  his 
damage.  "V\Tien  the  owner  is  jjetitioner  or  plaintiff, 
he  has  the  right  to  open  and  close  as  a  matter  of 
course,  and  even  in  those  states  in  which  the  con- 
demning party  is  petitioner  and  the  owner  respond- 
ent, the  latter  usually  has  the  right  to  open  and 
close.  In  some  states,  however,  the  petitioner 
although  it  is  the  party  seeking  to  take  the  land, 
has  the  privilege  of  opening  and  closing. 

If  the  owner  has  the  right  to  open,  it  is  usual, 
after  the  proceedings  have  been  read  or  put  in 
evidence  so  that  it  appears  what  has  been  taken  or 
is  sought  to  be  taken,  and  the  OAvner's  title  proved, 
if  he  is  the  petitioner,  by  a  certified  copy  from  the 
registry  of  deeds  of  the  conveyance  under  which  he 
holds,  for  the  owner  himself  to  take  the  witness 
stand  and  to  state  what,  in  his  opinion,  his  property 
was  worth  before  and  after  the  taking.  The  owner 
is  competent  to  testify  as  to  value,  merely  by  reason 


22  MODERN  AMERICAN  LAW  LECTURE 

of  his  ownership,  without  any  other  qualification  as 
an  expert.  The  presence  of  the  owner  on  the  stand 
is  of  great  importance  to  his  case,  as  injecting  into 
it  the  human  element,  for  the  jury  is  apt  to  give 
little  weight  to  a  claim  for  damage,  unless  the  person 
most  interested  is  willing  to  meet  them  face  to  face 
and  tell  them  why  he  thinks  he  has  been  injured  and 
how  much.  On  the  other  hand,  the  examination  of 
the  owner  is  the  crucial  point  of  the  case,  and,  if  he 
fails  to  make  a  favorable  impression,  his  attorney 
has  thereafter  an  uphill  battle.  The  owner  must  be 
cautioned  not  to  *'lay  it  on  too  thick,"  for  w^hile  a 
certain  amount  of  exaggeration  of  both  value  and 
damage  will  be  attributed  to  the  natural  impulses 
of  an  interested  party,  and  not  harm  him  seriously 
in  the  minds  of  the  jury,  the  writer  has  many  times 
seen  a  man  of  honesty  in  his  daily  life,  with  a  genuine 
claim  for  substantial  damages,  so  carried  away  by 
his  love  of  easily  gotten  money  and  his  sense  of 
resentment  at  the  taking  of  his  property  without  his 
consent,  as  to  make  a  preposterous  estimate  of  his 
own  damages,  with  the  result  that  the  jury  has  set 
him  down  as  a  liar  and  a  crook,  and  denied  him 
even  the  reasonable  compensation  to  which  he  was 
justly  entitled.  Then,  again,  it  does  not  look  w^ell 
for  the  owner  to  estimate  his  damages  far  in  excess 
of  his  o^ATi  experts,  or  to  make  a  claim  on  the  witness 
stand  inconsistent  with  his  own  previous  statements. 
An  owner  who  has  testified  to  the  value  of  his  own 
land  is  badly  discredited  if  it  is  brought  out  on  cross- 
examination  that  he  has  offered  the  same  land  for 
sale  at  a  price  far  below  what  he  now  testifies  is 


HOW  TO  TRY  A  LAND  DAIVIAGE  CASE  23 

its  fair  market  value,  and  lias  been  unable  to  secure 
a  purchaser.  Owners  too  often  make  fools  of  them- 
selves on  the  witness  stand  and  do  their  case  more 
harm  than  good,  but  unless  an  attorney  knows  by 
experience  that  his  client  is  hopeless  as  a  witness, 
it  is  taking  an  even  greater  risk  to  go  to  trial 
without  hun. 

An  owner  may  testify  as  to  the  physical  charac- 
teristics of  his  land  and  the  amount  of  rent  received 
therefrom.  If  the  land  is  used  for  farming,  he  may 
tell  the  jury  what  crops  it  produces.  Owners  whose 
projDerty  was  used  by  them  in  their  business  are 
very  likely  to  want  to  talk  at  length  to  the  jury  about 
the  injury  to  their  business  by  being  compelled  to 
move,  or  to  rebuild  their  stores  if  part  of  the  build- 
ing was  taken.  This  evidence  is  not  admissible,  as 
injury  to  business  is  not  a  proper  element  in  award- 
ing compensation  for  land  taken  by  eminent  domain. 
The  amount  of  business  done  on  the  land  before  the 
taking  may,  however,  be  shown,  not  as  an  element 
of  damage,  but  as  bearing  upon  the  availability  of 
the  land  for  the  use  to  which  it  is  actually  being  put. 
The  attorney  should  explain  this  distinction  to  his 
client  before  the  trial,  as  otherwise  the  o\^mer  may 
insist  on  attempting  to  get  the  evidence  before  the 
jury  in  his  o^^ti  way,  and  thus  cause  it  all  to  be 
excluded. 

Similarly,  what  the  owner  intended  to  do  with 
the  premises  is  not  admissible,  and  evidence  of  the 
owner's  plans  can  be  introduced  only  as  showing  one 
of  the  possible  advantageous  uses  of  the  land.  This 
distinction  should  also  be  explained  to  the  owner 


24  MODERN  AMERICAN  LAW  LECTURE 

before  he  takes  the  stand,  if  he  has  any  story  of 
blighted  projects  that  he  wishes  the  jury  to  hear. 
The  owner  should  also  be  warned  to  take  his  cross- 
examination  calmly  and  without  losing  his  temper, 
and,  if  he  is  asked  any  question  the  answer  to  which 
will  be  harmful  to  his  case,  to  reply  at  once  in  a 
matter-of-fact  w^ay.  The  evidence  is  indefinitely 
more  harmful  if  it  is  dragged  out  of  him  after  a 
long  series  of  reluctant  and  evasive  answers. 

After  the  OA\mer  has  completed  his  testimony  the 
principal  real  estate  expert  is  called.  A  competent 
and  experienced  real  estate  expert  needs  little  help 
from  the  lawyer.  He  should  first  be  asked  his  name, 
his  occupation,  the  length  of  time  he  has  been  in 
the  business  and  the  extent  of  his  business,  his  mem- 
bership in  real  estate  exchanges  and  the  like,  and 
his  other  qualifications  in  respect  to  the  real  estate 
business  and  especially  this  branch  of  it,  such  as 
acting  as  appraiser  in  other  land  damage  cases, 
thereby  showing  that  other  persons  had  confidence  in 
his  integrity  and  judgment  of  values,  and  testifying 
as  expert  for  the  condemning  party  in  other  cases, 
thereby  shomng  that  he  is  not  temperamentally 
optimistic  upon  the  subject  of  land  values.  His 
general  qualifications  having  been  shown,  he  should 
be  examined  as  to  the  sales  he  has  made  in  the  imme- 
diate vicinity  of  the  land  in  controversy,  the  lots  sold 
by  him  being  pointed  out  on  the  map  as  his  testimony 
proceeds.  At  this  point  he  is  not  asked  the  price 
paid  at  the  sales  in  question,  but  merely  the  fact  that 
he  knows  the  price.  After  the  sales  are  enumerated, 
he  may  be  asked  similar  questions  in  regard  to  lands 


HOW  TO  TRY  A  LAND  DAMAGE  CASE     25 

he  has  leased,  or  held  for  sale,  or  dealt  with  iu  any 
other  way.  After  the  attorney  for  the  owner  has 
brought  out  all  the  qualifications  of  the  witness,  it 
is  customary  in  most  jurisdictions  for  the  attorney 
for  the  condemnor,  if  he  does  not  admit  that  the 
witness  is  qualified,  to  cross-examine  him  on  that 
point  before  the  witness  attempts  to  testify  as  to 
value,  and  at  the  close  of  this  cross-examination  the 
court  rules  as  to  his  qualifications.  Whether  an 
expert  is  sufficiently  qualified  is  almost  entirely  in 
the  discretion  of  the  judge  presiding  at  the  trial, 
and  no  exception  lies  to  his  ruling  unless  it  is 
palpably  wrong.  If  the  witness  is  held  to  be  quali- 
fied, the  attorney  for  the  owner  asks  him  if  he  has 
examined  the  property  in  question,  and  upon  receiv- 
ing an  affirmative  answer  asks  him  how  much,  in 
his  opinion,  it  was  worth  immediately  before  the 
taking  or  injury  complained  of,  or  on  whatever  day 
is  fixed  by  the  local  practice  as  the  date  as  of  when 
damages  are  assessed.  Upon  a  figure  being  named, 
the  expert  is  next  asked  his  reasons,  and  should 
then,  with  as  little  prompting  from  the  attorney  as 
possible,  state  the  uses  for  which  the  land  is  avail- 
able and  all  the  other  elements  of  value.  At  this 
point,  if  evidence  of  sales  is  competent  in  the  juris- 
diction in  which  the  trial  is  taking  place,  the  expert 
may  be  asked  the  price  paid  at  or  about  the  time  of 
the  taking  for  similar  lands  in  the  neighborhood. 

Evidence  of  the  value  of  the  land  before  the  taking 
having  been  introduced,  the  next  step  is  to  show  the 
amount  of  the  damage.  In  some  jurisdictions  it  is 
held  that  an  expert  cannot  be  asked  to  state  tlie 


26  MODERN  AMERICAN  LAW  LECTURE 

amount  of  the  damage,  as  that  is  a  matter  of  conclur 
sion  for  the  jury  to  pass  upon,  but  he  may  be  asked 
the  vahie  before  and  the  value  after  the  taking. 
After  such  testimony  the  jury  can  readily  ascertain 
what  the  expert  considers  to  be  the  damage  by  sub- 
tracting one  figure  from  the  other.  In  other  states 
an  expert  is  allowed  to  give  his  opinion  of  the  amount 
of  damage  to  the  jury  directly.  An  expert  may 
either  state  the  damage  in  dollars  and  cents,  or 
testify  that  the  property  has  lost  a  certain  percent- 
age of  its  value.  The  expert  sliould  state  some 
plausible  reasons  for  his  estimate  of  damage,  as  a 
dogged  insistence  that  the  property  is  damaged  a 
certain  amount  without  anything  to  back  it  up  makes 
a  bad  impression.  Evidence  that  property  similarly 
affected  sold  for  less  than  before  the  taking  is  of 
course  the  strongest  corroboration  of  the  expert's 
opinion,  and  instances  of  sales  of  this  character 
should  be  carefully  sought  out  and  put  in  evidence 
at  this  point.  The  amount  paid  in  settlement  for  the 
injury  to  neighboring  lands  cannot,  however,  be  put 
in  evidence  in  any  form. 

The  right  of  the  condemning  party  to  set  off 
benefits  to  the  remaining  land,  resulting  from  the 
construction  of  the  public  work  for  which  the  land 
was  taken,  from  the  value  of  the  land  taken  or  from 
the  damages  to  the  remaining  land,  depends  upon 
the  constitution  and  decisions  of  the  state  in  which 
the  trial  is  taking  place,  and  as  there  are  at  least 
six  different  rules  upon  the  subject  adopted  by  the 
different  states,  it  is  impossible  to  go  into  this  phase 
of  a  land  damage  case  in  an  article  like  the  present. 


HOW  TO  TRY  A  LAND  DAMAGE  CASE  27 

It  may  be  said,  however,  that  in  a  state  in  which 
benefits  may  be  set  off,  the  existence  and  amount  of 
benefits  should  be  proved  by  the  same  sort  of  evi- 
dence as  damages,  and  that  absence  of  benefits  is 
part  of  the  owner's  case  in  chief.  In  other  words, 
it  is  incumbent  upon  the  owner  to  show^  how  much 
less  his  property  is  worth  by  reason  of  the  taking, 
considering  all  elements  both  of  advantage  and  dis- 
advantage resulting  from  the  taking,  and  he  cannot 
offer  evidence  of  the  absence  of  benefits  for  the  first 
time  in  rebuttal. 

After  the  principal  expert  has  testified,  other 
experts  are  introduced  in  the  same  manner.  While 
it  is  well  to  allow  the  experts  to  consult  with  each 
other  before  the  trial,  each  should  make  his  report 
to  the  attorney  for  the  owner  independently  of  the 
others.  After  the  report  has  been  made,  an  expert 
may  w^ell  revise  his  judgment,  if  he  finds  it  at  vari- 
ance w^ith  those  of  men  whose  opinion  he  respects, 
but  he  should  not  be  expected  to  give  testunony 
w^hich  he  does  not  himself  believe.  If  his  opinion 
is  widely  divergent  from  that  of  his  fellows  he  should 
not  be  put  on  the  stand.  On  the  other  hand,  it  does 
not  look  well  for  all  the  experts  of  one  of  the  parties 
to  testify  as  to  exactly  the  same  amount  of  value 
and  damage,  as  it  shows  conclusively  that  they  have 
concocted  their  testimony  together  and  that  it  does 
not  represent  the  independent  judgment  of  any  one 
of  them. 

When  the  condemning  party  begins  to  put  in  its 
case,  the  attorney  for  the  owner  should  remember 
that,  in  most  jurisdictions,  he  has  the  right  to  cross- 


28  MODERN  AMERICAN  LAW  LECTURE 

examine  an  expert  upon  his  qualifications,  before 
he  begins  to  testify  as  to  value,  and  that  unless  the 
attorney  for  the  owner  cross-examines  the  expert  as 
to  qualification  the  jury  will  conclude  that  he  con- 
cedes the  point.  Of  course  all  experienced  attorneys 
avoid  cross-examining  a  witness  when  the  only  effect 
will  be  to  emphasize  his  testimony  on  direct  exami- 
nation, but  it  is  a  rare  case  in  which  a  real  estate 
expert  cannot  be  compelled  upon  cross-examination 
to  modify  a  sweeping  claim  to  familiarity  with  the 
immediate  vicinity  of  the  land  in  question;  and 
often,  by  pinning  hun  down  to  sales  within  his 
personal  knowledge,  his  testimony  is  discredited  or 
even  excluded  altogether. 

If  the  opposing  expert  is  allowed  to  testify,  the 
attorney  who  has  thoroughly  familiarized  himself 
with  the  rules  of  evidence  in  land  damage  cases  has 
a  great  advantage  over  one  who  is  without  special 
experience  or  preparation  in  this  line,  and  may  often 
prevent  the  introduction  of  much  testimony  of  a 
damaging  character  to  which  an  attorney  less  care- 
fully prepared  would  fail  to  object. 

It  is,  however,  upon  the  cross-examination  of  the 
experts  introduced  by  the  opposing  side  that  an 
attorney  in  a  land  damage  case  has  the  greatest 
opportunity  to  display  his  skill,  and  while  ability  to 
cross-examine  well  is  to  a  certain  extent  a  natural 
talent,  in  cases  of  this  character  the  success  of  the 
cross-examination  depends  largely  upon  the  prepa- 
ration of  the  attorney  conducting  it  with  relation  to 
the  facts  of  the  case.  An  attorney  who  has  famil- 
iarized himself  with  all  the  s^les  m  the  neighborhood 


HOW  TO  TRY  A  LAND  DAMAGE  CASE  29 

of  the  taking,  and  the  circumstances  of  eacli  sale,  and 
who  knows  what  the  different  real  estate  men  of 
the  neighborhood  have  been  doing,  is  frequently 
able  to  discredit  the  entire  testimony  of  a  hostile 
real  estate  expert  by  showing  that  he  concealed  from 
the  jury  material  facts  with  regard  to  a  transaction, 
concerning  which  he  has  testified,  ^Yhich  put  it  in 
an  entirely  different  light,  or  by  making  him  admit 
that  the  same  conditions  affected  certain  other  prop- 
erty in  a  different  manner  from  that  in  wliidi  he 
testified  the  property  under  consideration  would  l)e 
affected. 

Upon  the  closing  argument  the  attorney  for  the 
owner  could  marshal  his  evidence  and  the  inferences 
that  can  be  logically  drawn  from  it,  rather  than 
indulge  in  denunciations  of  the  condemning  party 
or  appeals  to  the  prejudices  of  the  jury.  It  is  not, 
how^ever,  improper  to  lay  stress  upon  the  fact  that 
eminent  domain  is  a  drastic  interference  with  indi- 
vidual property  rights,  and  fraught  with  possibil- 
ities of  abuse  and  injustice,  unless  the  owner  is 
aw^arded  the  just  compensation  guaranteed  him  by 
the  constitution.  In  discussing  the  value  of  laud 
taken,  the  attention  of  the  jury  should  be  called  to 
the  i^oint  that  this  is  the  owner's  only  day  in  court, 
and  that  if  his  contentions  as  to  the  latent  value  of 
the  land  for  uses  to  which  it  is  not  now  i)ut  are 
disregarded  by  the  jury,  but  subse(iuontly  prove  to 
have  been  sound,  the  injustice  can  never  be  rectified. 

Upon  the  subject  of  damage  to  land  not  taken 
there  is  one  point  often  overlooked  by  court  and 
counsel,  with  the  result  that  grave  injustice  is  done 


30  ]\rODERN  AMERICAN  LAW  LECTURE 

the  landowner.     It  usually  happens,  when  an  ease- 
ment is  taken  by  eminent  domain,  that  it  is  not 
planned  or  expected  to  exercise  the  easement  taken 
to  its  full  extent  at  once,  but  the  damages  should 
nevertheless  be  assessed  upon  the  basis  of  the  right 
taken,  and  not  of  tlie  plans  of  the  condemning  party, 
which  it  may  subsequently  modify  at  any  time.    If 
damages  are  assessed  upon  the  basis  of  the  actual 
use  to  which  the  land  has  been  put  or  which  it  is 
intended  to  put  it,  and  the  easement  taken  is  after- 
ward enjoyed  to  its  full  extent  by  the  condemning 
party,  the  owner  is  never  compensated  for  the  addi- 
tional damage  to  his  land.    For  example,  an  owner 
of  land  taken  for  highway  purposes  is  not  entitled 
to  additional  compensation  if  the  grade  of  the  high- 
way is  subseqTiently  changed,  or  a  street  railway, 
and,  in  some  jurisdictions,  a  telegraph  line,  or  even 
a  steam  railroad,  is  constructed  upon  it,  by  authority 
of  laws  su]3sequently  enacted,  unless  the  constitution 
or  statutes  of  the  state  make  special  provision  for 
compensation  in  such  cases.     If  a  strip  of  land  is 
taken  for  railroad  purposes,  and  devoted  to  a  single 
track  line  with  but  few  trains  a  day,  the  owner  is 
not  entitled  to  additional  compensation  if  the  strip 
becomes  part  of   a   four-track   through   line,   with 
dozens  of  fast,  heavy  trains  daily,  and  grades  are 
changed  so  that  his  land  is  covered  with  surface 
water.    In  all  of  such  cases  additional  compensation 
is  denied  the  owner  because,  in  theory  of  the  law,  he 
received  compensation  for  the  full  exercise  of  the 
easement  when  it  was  taken.    It  therefore  behooves 
the  attorney  for  the  owner  in  all  cases  of  this  char- 


now  TO  TRY  A  LAND  DAMAGE  CASE  31 

acter,  by  requests  for  rulings  to  the  judge  and  by 
argument  to  the  jury,  to  bring  out  emphatically  the 
full  extent  of  the  easement  taken,  and  to  make  the 
jury  clearly  understand  that  unless  the  owner  is 
compensated  now  for  the  damage  arising  from  the 
uses  to  which  the  land  taken  may  lawfully  be  subse- 
quently put,  he  never  Avill  be.  Similarly,  when  part 
of  a  parcel  of  land  is  taken  in  fee  for  a  park  or 
similar  harmless  use,  if  the  city  has  the  right  to  sell 
the  land  so  taken  or  to  erect  buildings  upon  it  with- 
out additional  compensation  to  the  owner  of  the 
remaining  land,  the  attorney  for  the  owner  of  the 
remaining  land  should  call  the  attention  of  the  jury 
to  this  element  in  the  compensation  to  which  he  is 
entitled. 

From  all  that  has  been  stated,  it  will  be  seen  that 
the  trial  of  land  damage  cases  requires  a  careful 
preparation  both  of  law  and  fact,  and  it  is  doubtless 
easier  for  an  attorney  unfamiliar  with  land  damage 
cases  to  call  in  as  senior  counsel  a  specialist  in  such 
litigation,  but  an  attorney  in  general  practice,  who 
is  able  and  unwilling  to  \)\\t  the  time  into  prepara- 
tion, should  not  be  afraid  to  try  a  land  damage  case 
without  calling  in  a  specialist  to  assist  him,  unless 
the  case  is  of  unusual  importance  or  presents  unusual 
difficulties. 


/Xjj.^^^ 


GAYLAMOUNT^ 
PAMPHLET  BINDER 

^^^        Syrocuse,  NY. 
^^S        Stockton,  Colif. 


r»r>sRY  F«^". ''^ 


AA    000  776  915    i 


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